101 

.Lfe5 



AN 



AUTHENTIC EETORT 



OF A 



. BEFORE THE 

8XFPREME JUDICIAL COURT OF XftAZSfS? 

F0R THE 

COUNTY OF WASHINGTON, JUNE TERM, 1824. 
CHARLES LOWELL vs. JOHN FAXON & MICAJAH HAWKS, 

SURGEONS AND PHYSICIANS, IN AN ACTION OF 

TRESPASS OW THE CASE, 



For Ignoranse and Negligence in their professional treatment of the PlrFs dis- 
located hip, with observations on the prejudices and conduct of the Inhab- 
itants of Eastport, in regard to this cause ; the character and testimony 
of the several Witnesses, and the novel, and extraordinary posi- 
tions assumed by the Court. 



*' Grose Negligent©, therefore, is in the law said to be almost equal to malicious design." 



PORTLAND : . • 

PRINTED FOR THE AUTHOR,, 

1825. *v 



fu&C/t^c U — fj£ 



ft/. 



/o / 



■l&r 



m L.s. 
m 



Distrid o Maine, ss. 

BE IT REMEMBERED, that on this seventh day of January, in the year 
of our Lord one thousand eight hundred and twenty-five, and the forty- 
SB ninth year of the Independence of the United States of America, 



MR. CHARX.ES LOWELL, 

of the District of Maine, has deposited in this Office, the title of a Book, the right where- 
of he claims as Proprietor, in the words following, \iz : 

11 An authentic Report of a trial before the S. J. Court of Maine, for the County of Wash* 
ington, June Term, 1824. Charles Lowell vs. John Faxon &, Mica jah Hawks; 
Surgeons and Physicians, in an action of trespass on the case, for ignorance and neg- 
ligence in their professional treatment of the Plaintiff's dislocated hip ; with observa- 
tions on the prejudices and conduct of the inhabitants of Eastport in regard to this 
cause ; the character and testimony of the several witnesses and the novel and 
extraordinary positions assumed by the Court. " Gross negligence therefore, is, in 
the law, said to be almost equal to malicious design." 

In conformity to the Act of the Congress of the United States, entitled, " An Act for 
the encouragement of learning, by securing the copies of maps, charts, and books, to 
the authors and proprietors of such copies, during the times therein mentioned;" and 
also, to an act, entitled, " An Act supplementary to an act, entitled, an act for the en- 
couragement oflearning, by securing the copies of maps, charts, and books, tothe authors 
and proprietors of such copies, during the times therein mentioned, and extending the 
benefits thereof to the arts of designing, engraving, and etching historical and other 
prints." 

J. MUSSEY, Clerk of the District Court of Maine. 



A true copy as of Record, 



Attest, J. MUSSEY, Clerk D. C. Maine. 






i 



M 



tfO THE PUBLIC, 

-"AVING passed through an extraordinary scene of suffering 
injustice and oppression, and having been encouraged by severa 
literary gentlemen, whose opinions I respect, and believing i 
would promote the cause of justice, by exposing corruptions and 
fraud, and by guarding the public against two very alarming 
evils, which are daily ruining thousands throughout our happy 
land, I have been induced to present you with the following 
report of observations, respecting an important cause, which has 
for the last three years caused no ordinary degree of excitement 
in this county and other parts of Maine, <md terminated in a man- 
ner that surprised almost every disinterested person who was ac- 
quainted with the transaction, and (as I think) reflects much on 
the official conduct of Judge Weston, and the candor and intelli- 
gence of the Jurors of this county. As I consider myself unusu- 
ally and wickedly oppressed in this novel transaction, I most ur- 
gently and respectfully request a generous public, to give this 
pamphlet a thorough and candid reading, and then say, whether 
I have not sufficient reason to complain of these Doctors, and the 
Court, and Jury. I regret that I have been unable to obtain the 
arguments of the counsel, and for the charge which will be found 
in this work, marked D., I am indebted to the politeness of a 
young gentleman, who took it down, and is ready, as are also 
many others, to testify, that the greater part of it, is verbatim, and 
that, no part of it contains an idea that was not advanced by the 
Court. In order that the public may have a right idea of this 
cause, and its aggravated circumstances, I shall now proceed to 
give a brief history of the whole affair, omiting such parts as ap- 
pear unimportant, or are contained in the accompanying deposi- 
tions. 

On the 7th of Sept. 1821, 1 was thrown by a young and restive 
horse, which fell immediately upon me in the manner stated in the 
deposition of J. G. Reynolds. Doctor John Faxon, of Lubec, 
(where I resided at that time) was immediately called in, examin- 
ed and pronounced the hip dislocated ; said, he could set it, and 



4 

accordingly operated, and declared the dislocation reduced. Fax* 
on had been my family physician for several years, and at that 
time, was the only one in town. It is understood, that he is not 
a thorough bred physician, and it is also well known, that h« does, 
notwithstanding, make very great pretensions to a thorough 
knowledge in every department of physic and surgery, (Jud^e 
Weston's assertion to the contrary notwithstanding.) As this was 
an important case, my friends advised me to send to Eastport, 
three miles distant, for Dr. Hawks, who had also been my family 
physician in all cases of importance for three years preceding — 
he arrived in about two or three, hours, examined and again put 
me to the torture, and subsequently conducted in the manner stat- 
ed in the deposition of Joshua A. Lowell. Doctor Hawks settled 
in Eastport (I think in 1818) and in August of that year, attend- 
ed me with a fever in company with Dr. Faxon, and for 7 visits, 
at that time, I paid him 21 dollars besides medicine and passage 
money. In 1819, he was again employed in my family, and in 
both instances, received his pay as soon as the services were ren- 
dered, While I was confined with my lame hip, it was notorious, 
that Dr. Hawks did say, that it was a pity, there was not some liv- 
ing spectacle of Faxon's ignorance and quackery ; and that too at 
the time, when I was in excruciating pains, it being on the 4th or 
5th day after the operation ; when we sent by Brooks for him to 
come over and see me, as stated by J. A. Lowell — Brooks also 
testified, that he did the errand at the time; when Hawks came to 
Lubec on the 19th November, after neglecting me 15 days at one 
time, 10 at another, 3 weeks at a third, and 4 weeks at the fourth 
time, it was not to give the pleasing intelligence, that I should 
soon be well, and return to my business with all my former pow- 
ers ; nor was it with an intention of seeing me at all. No, it was 
merely fgr the purpose of introducing his friend Whipple, who 
had come from Boston with the intention of settling at Lubec: he 
did, however, inform me, that I had gotten to be a cripple for life, 
all through Faxon's ignorance and quackery, (as he said) he ob- 
served that he reduced the dislocation at the time of recent injury, 
so that Faxon had permitted me again to luxate the hip, not- 
withstanding my kness were tied together with a bandage. Hawks 
and Whipple arrived at Lubec about noon, and spent the residue 
of the day with other people, and about sunset went to the wharf ; 
and Hawks was on the eve of departure, without seeing me at all, 
when I hobbled out with my crutches, and persuaded him to come 
in, which he did, and toid me as before stated ; these are solemn 
facts, which speak volumes. Dr. Whipple did not thinly the 



5 

chance for me to be helped so small as Dr. Hawks did ; when Dr, 
Hawks left m}' house at this time, he told me that I should be safe 
in the hands of Dr. Whipple, and if I should conclude to have an- 
other trial he would come over and assist, at any time I should 
send. I spent one week in suspence, not knowing whether to sub- 
mit to another operation at Lubec, or to go to Boston — during 
this week of suspense, refreshment and repose were almost entire 
strangers to me ; but after I had determined in my own mind which 
would be the better, I went on board the packet, bound to Boston, 
and although it was but one week after Hawks' last call, he was 
so inhuman, as to send his bill on board the packet at 10 o'clock 
at night, and demanded and received payment in cash, fc uch 
treatment as above described. I arrived in Boston early in De- 
cember, and after consulting with Dr. Warren, who told me \ lere 
was no probability of helping me, that the time for my relief u is 
past, that if 1 had been there in three or four weeks after the inju- 
ry, he could have made every thing right, that it was nonsense 
for Hawks to say he ever reduced the dislocation, and that I dis- 
placed the bone again while lying in bed. I persuaded him to op- 
erate, as he said it would make me no worse, and was possible, 
though very improbable, that they might succeed. Previous to 
the operation, he called in Doctors Mann, Spooner, Welch, and 
Townsend,and those five, were unanimously of opinion that my in- 
jury was a simple luxation, but that it had been of so long standing, 
being then exactly three months, that there would be no prospect 
of success in the operation, and it remained with me to decide, 
that if I insisted on the operation, they would make the attempt. 
I told them I was prepared in body and mind to submit to the pains 
of an operation, that 1 was a young man, and had a family de- 
pending on my industry for support, and that on their account I 
considered it my duty to submit to a trial by them, so long as 
there was a possibility of success. The operation was according- 
ly performed with the putties, bandages, and chords, in the pres- 
ence of more than one hundred persont, including surgeons, stu* 
dents and spectators. It occupied uearly two hour* , and although 
it entirely failed of success, I was, and am still well satisfied with 
Doctor Warren's management, and must say, that 1 believe his 
preparatory as well as operative measures, were very judicious 
and such as could not well be exceeded in point of skill and pru- 
dence. Notwithstanding I was perfectly satisfied with this oper- 
ation, I was persuaded by my friends in Boston, to let Dr. Ingalls 
examine me, and afterwards operate in one week from the time 
Dr. Warren operated, assisted by Dr. Yates and about a dozen 



* 

students. It was, however, altogether without success. In about 
two weeks from that time, the bone-setter, (Dr. Hewes) made a 
similar attempt, attended with a like result. After I had convers- 
ed with these Doctors in Boston, I was satisfied, that I had been 
imposed on, and that my ruin had been effected by ignorance, stu- 
pidity and the most unpardonable neglect ; therefore, as soon as 
I returned to Lubec, I commenced an action for malpractice ; pre- 
vious to which, I sent my brother to Faxon with money to settle 
his bill ; but he having heard the day before, that I was about to 
commence a suit against them, told my brother he had no charge 
against me in the case, he having acted as assistant to Dr. Hawks. 
This was policy. The suit was accordingly commenced, and came 
to trial March term, 1823 — -of the C. C. Pleas, when I obtained 
a verdict of 1962 dollars damages ; from which the defendants 
appealed to the S. J. Court, which set in July following. At the 
C. C. Pleas, Judge Perham presided, and was decidedly of opin- 
ion, that I ought to be remunerated ; and Chief Justice Mellen* 
who tried the cause at the upper Court, was also of the same opin- 
ion : at this Court, the cause appeared clearer than before, and 
there was nothing to prevent a verdict in my favor, but the Jurors 
from Eastport and two others, who were under the immediate cor- 
rupt influence of that place — and here the subject leads me to re- 
mark, that there has been for several years a great rivalship exist- 
ing between the towns of Lubec and Eastport, and that the local 
prejudices of the inhabitants of the latter place, have, on account 
of my living at Lubec, had a very powerful effect on this import 
tant trial : and with all due respect for the characters and feel- 
ings of others, I now declare, and be it said to their eternal shame, 
that a very great proportion of the inhabitants of Eastport, (I do 
not mean to say all) let their pretensions to Christianity and respec- 
tability be what they may, have combined together to defeat this 
most righteous of all righteous causes. In support of this asser- 
tion, I would mention the following circumstances, viz. At the 
first trial, there was one man on the Jury from Eastport, who stood 
out 6 or 8 hours after the other 11 had agreed, which they did in 
20 minutes, that the defendants were guilty of what I charged 
them with, and then estimated the damage or loss of my hip, at 
the paltry sum of one hundred dollars ! t When Judge Mellen 
tried the cause, there were on the Jury from Eastport three mer- 
chants, one of them the Deacon of a Baptist Church, and other- 
wise a respectable man, who when 4 he was interrogated by the 
Court as to prejudice or bias in respect to the cause then about to 
foe tried, answered, that he had none ; had heard nothing of 



the case, and formed no opinion on the subject — another, who had 
represented the town in the State Legislature, answered, that he 
had not heard of the case ; at which the Judge appeared quite sur- 
prised, and said, he could not say he had not heard of the case, 
though he lived in Portland. The fact no doubt was, that these 
fellows had heard the case spoken of more than an hundred times, 
for it had caused great excitement, and been a subject of general 
conversation through the county ; and in spite of all that could 
be said by my counsel, and in opposition to general usage, and 
every principle of modesty and jnstice, they would stay on the 
Jury, and for what purpose, I leave for the public to judge. As 
soon as these three men were drawn Jurors for the S. J. Court of 
1823, one of the selectmen of Eastport, naming who had been 
drawn, told a certain gentleman, that he might consider the fate 
of Lowell's case as determined, that he would not give 4 l~2d for 
his chance of success. Is it unreasonable to suppose that thisse- 
lected man, had learned the opinion of these men, previous to the 
drawing, had presided at the jury box, and was instrumental in 
their being drawn ? In consequence of the Jury not agreeing the 
cause stood continued till the June term, I824.~After the cause 
"was taken from the Jury, my counsel addressed the Court and ob- 
served, that the result was no more than he expected : pointed to 
those three Jurors and said, " Those fellows remained on the Jury 
on purpose to defeat the cause of justice :" a severe but deserved 
rebuke. The cause was again brought to trial, Judge Weston 
presiding ; who instructed the jury in such a novel and extraordi- 
nar}' manner, that they did not agree, after which, it was propos- 
ed by the Court, and acceded to, by the parties, that the cause 
should be entered neither party. I should never have consented 
to such a disposition of the action, had it not been, that the ex- 
citement and prejudice were so great, that there would be no pro- 
bability of getting an impartial trial. The substance of my testi- 
mony as to facts in Lubec, is contained in the three following de- 
positions, viz. : — 

A. 

I, Jonathan G. Reynolds, of Lubec, in the county of Washing- 
ton, do depose, testify and declare — 

Question by Charles Lowell, plaintiff. — Were you the owner 
of the horse by which I got hurt^ in 1821 ? 

Answer. I was. 

Ques. by same. — Were you present when I received the injury? 

Ans. — I was. 



Ques. by same. — Did 1 fall on my back, or side? 

Ans. — It appeared to me, you fell on }^our back. 

Ques. by same. — As I fell, did the horse fall directly across my 
thighs ? 

Ans. — It appeared to me, at the time, that the horse fell oblique- 
ly across your thighs and other parts of the body, and it appeared 
to me, that the horse fell partly betwixt the legs, so that his weight 
was more on one hip than on the other. 

(Signed,) J. G. REYNOLDS. 

Sworn to before Daniel Pease, J. P. 



I, Jacob Winslow, of lawful age, do testify, declare, and say — - 

Ques. by Lowell, plaintiff. — Were you employed by my broth- 
er to go after Dr. Hawks and to carry him back to Eastport, at 
the time I had my hip injured in 1821 ? 

Ans. — Yes. 

Ques. by same. — When you got to Eastport, and told Dr. 
Hawks I wished for him to come and see me, did he express any 
inconvenience or hesitation about visiting me ? 

Ans. — He did not. 

Ques. by same.— When you were on your return to Eastport, 
did Dr. Hawks say any thing to you about my injury, or aboutDr. 
Faxon as a physician in my case ? 

Ans. — He did. 

Ques. by same. — Did Dr. Hawks say, that Dr. Faxon was not 
fit to doctor a sheep or hog, much less a human being, or use 
words to that effect ? 

Ans. — He either said, that Dr. Faxon was not fit to doctor a 
bog or sheep, or that he would as soon trust a hog or sheep to doc- 
tor him. 

Ques. by same. — Did Dr. Hawks tell you, that he had set my 
hip, and that it would probably be well in a short time? 

Ans. — I asked him if he thought the bone was broke, he said 
bo, the bone was out ofjoint, and he had set it, and it would pro- 
bably be well soon. 

Ques. by defendant's attorney. — Have }'ou ever had any diffi- 
culty or misunderstanding with Dr. Faxon ? 

Ans. — No. 

(Signed,) JACOB WINSLOW. 

Sworn to before Aaron Hayden, J. Peace. 



9 

o. 

I, Joshua A. Lowell, of Farmington, in the county of Kewne- 
bec, student at law, do testify, depose and say, that I was em- 
ployed as clerk in the store of Charles Lowell of Lubec, at the 
time he had his hip dislocated by a fall from a horse, which was 
on the 7th of September Anno Domini 1821'. I was immediately 
called, (I think) by a Mr. $tearns. On my enteringthe room, I 
found Dr. Faxon endeavoring to set it. Mr. Stearns, Mr. Cof- 
fin, and some others whose names I do not recollect, were in the 
room at the time. The only means,I recollect of being used to set 
the dislocated limb, was a ball, made of a large sheet, as a ful- 
crum, the dislocated limb serving as a lever ; in a few minutes, he 
(Faxon) said that he had set it, and asked us to feel, and see if it 
were not set — Mr. Coffin told me, he had known one or two in- 
stances of the kind, and knew that the hip was not set. He advis- 
ed me to send to Eastport for Dr. Hawks. I talked with Mr 
Lowell, and we concluded to send for him, (Hawks) and named 
it to Faxon, who said he was willing we should. The operation 
performed by Dr. Faxon, was immediately after the fall, I should 
think, within 15 minutes. Dr. Hawks arrived in about 3 hours 
after, examined the dislocated limb, asked Dr. Faxon some ques- 
tions, they then went together into another room, were absent a 
few minutes and returned ; Hawks said " Mr. Lowell, we must 
hurt you some more." Lowell asked," Doctor what is my situa- 
tion ?." Dr. Hawks answered, " your hip is dislocated, and I think 
the socket a little fractured,but we will set it." Faxon then said, 
" yes, I am convinced that all is not right" — Dr. Faxon then 
asked, " what part shall I take in the operation ?" Hawks an- 
swered, " what part do you choose?" Faxon replied, " a second 
hand birth." They then undertook jointly to reduce the disloca- 
tion, Hawks directing the manner of the operation, which as near 
as I can recollect, was as follows — Lowell was placed crosswise 
on the bed, a sheet put round the well thigh with several men to 
draw upon it — Some others at the arms, and two or three with 
Faxon extending the lame limb, by means of a towel taken round 
he knee. During the operation, Hawks would occasionally assist 
in extending the lame limb, but most of the time, appeared to be 
trying to discern the head of the thigh bone. I did not know of 
their using any other means to remove the bone from its lodge- 
ment, than the extension of the limb. At the time they com- 
menced, the lame limb being off in an awkward position from the 
body, forming an angle with the other, of about 40°. While 
extending the lame limb, they carried it in towards the other 



10 

which made a kind of grating. They (Hawks and Faxon) then 
said, it was set, and that the grating was made by the bone go- 
ing into the socket : they then put a handkerchief round the Pa- 
tient's knees, and Faxon said " Lowell you must lie here three 
days" — three days ! ! said Hawks, " you must lie three times 
three days-*-you must fie on-your back, fourteen days." 

Lowell, (the patient) then asked Hawks, if it would not be 
necessary for him to come over the next day, to see him, and tell- 
ing him at the same time, he did not value the cost ; to which, 
Hawks replied, " No, for I will give Dr. Faxon, a particular 
charge how to proceed" — during this last conversation, Faxon 
was in the other room. He came in soon after, and Dr. Hawks 
said to Faxon, " you must bleed Mr. Lowell to-morrow, for he 
has not bled very well now," and added, " you must take care 
that an inflammation does not set in," with some further directions 
which I do not recollect. They (Hawks and Faxon) then said 
to Lowell, "you are now in a good way, you will do well ; and 
will not be detained from your business, more than a few weeks" 
— Hawks said, " you must not however be in too great a hurry 
to get out, for your case is an important one" — Dr. Faxon came 
in next morning without being sent for, and continued to attend 
him, a number of weeks, calling pretty often at first. He did not 
to my knowledge examine the limb after the operation, though 
he often prescribed liniments for bathing it. Lowell was in great 
pain and entirely restless for a number of days, particularly on 
the 4th & 5th days after the operation. At this time Mr. Wm. M. 
Brooks was over from Eastport, and we sent by him for Dr. Hawks 
to come immediately. He did not come at that time. — On the 
15th day after the operation, being about 10 days after we sent 
by Mr. Brooks, Hawks came over without being sent for to my 
knowledge. He came a few minutes after Lowell had been from 
his bed for the first time to have it made — at this time, I was not 
at the house. A short time after, Dr. Hawks sent over a phial of 
linimenf — Lowell continued to lie in bed a number of days, mak- 
ing in all 18 days — about 8 or 10 days after that, Hawks came 
over again without being sent for to my knowledge — I was pres- 
ent, and very particular in noticing all he said respecting the 
lameness. Lowell stood up, and said, " Dr. explain to me the 
cause of the hollow on the outward side of the injured hip" — to 
which Hawks replied, " it is a natural consequence : when your 
hip strengthens, so as to bear an equal proportion of the weight 
of the body, that hollow will fill up" — he said further, " you 
are doing well, Mr. Lowell, and will eventually be well as eyer, 



11 



You must not be in too great a hurry to get out, for if you make 
one misstep, you may yet be a cripple for life. It would be better 
that your house should burn down round your ears, than that 
you should make one slip." He said, « write to me Mr. Lowell 
and state particularly how you feel, and I will come over, or send 
such medicine as you may need." While he was there he^took 
hold of the limb, and surveying it several times, and said, it is 
all right." He tarried only a few minutes and always appeared m 
a great hurry. On or about the 23d day of October, he called 
again, being two or three weeks from the time he was over be- 
fore, appeared in extreme hurry, and would not stop to sit down, 
said to the patient, « I wish to ask you a few questions. Lowell 
replied, " I wish to ask you one first," and said, " Doctor, what 
is the cause of the lame limb being so much longer than the oth- 
er ? " At this, Dr. Hawks appeared surprised, and after being 
questioned very closely said, " it looks as though the bone was 
not in its place, but I will be over to-morrow, and give uVa 
thorough examination." He did not come over at that time. A- 
bout8 or 10 days afterwards, I was at Eastport and told Doctor 
Hawks, Mr. Lowell was anxious to see him, and asked him why he 
had not been over ? he answered, " I have been so much engaged, 
that I could not leave, but I will be over this afternoon and exam- 
ine him unless the witches prevent"— I asked him, what do you 
think of his situation, and the lame limb being longer than the 
other ? To which, he answered with an oath, " I am afraid it is 
not set." He did not come over at that time. The next time he 
came over with a Dr. Whipple. I was not in the house at the 
time. This was the last time I ever knew him to call, and was 
about the 19th of Nov. and was nearly 4 weeks from the time he 
promised Mr. Lowell at Lubec, and 16 days from the time he 
promised me at Eastport, to go over the same day— Mr. Low- 
ell's family were out of town during his whole confinement. I 
was very particular in my attention on him, and was with him 
a great part of the time both day and night : he was very particu- 
lar to act according to the Doctor's directions,so far as I was know- 
ing— J am confident the position and length of the limb, are the 
same now, they were when he first left his bed. 

Quest, by plaintiff.— Before the sheet and towel used for ex- 
tension, were applied, were the parts protected by cotton wool, 
compresses of linen, or any soft substance, or was there any thing 
said by the surgeons about them, or about a matress or any oth- 
er kind of bed ? 

Ans.— I neither saw, nor heard any thing of the kind, 



12 



By same.— Did the Doctors appear to act jointly and deliber- 
ately, or otbem.se? Please to state, and how long you ,i nk 
they were in the examination of the case. 

Ans.— They did appear te act jointly, but hastily— I think thev 
examined the case, not more than one or two minutes y 

By same— Do you recollect any thing respecting the fierure 
or hamtnng muscles immediately contracting, and of my com! 
plaining of considerable pain from them, and that the contraction 
and pa.n continued a great part of the 18 days, which I was con- 
fined to my bed, m such a manner as to keep the limbs continu- 
ally bent, as it now is t 

Ans. — I do recollect, that such were the facts 

Do!for S s a Wmen d t ) *"* "* t ^ "*"" ^ at ™*™ * ** 
Ans. — You did. 

By same— Was I not very inquisitive and particular with the 
Doctors at their several visits, and especially with Dr. Hawks re- 

HXaI r r S ° nS f ° r the UMat " ral »PP^rances, which pre- 
sented themselves ,n my case, and did they not always assure me, 

everf WaS " S WUh "^ * ihould sh °"^ be we " * s 

Ans — You were very particular in your enquiries, and they did 
assure you all was right. * 

(Signed,) JOSHUA A. LOWELL, 

hworn to before Nathan Cutter, J. Peace. 
The substance of the professional testimony adduced at the 
trial, is as follows, viz. : Doctors Warren, Mann, Welch and 
Townsend, Surgeons and Physicians of the « Massachusetts Gen- 
eral Hospital, who examined in company with Dr. Spoonerand 
others, three months after receiving the inju.y, and operated to 
reduce the dislocation, testified, that the hip was dislocated down- 
ivard and backward into the isckiatic notch, that it was a simple 
dislocation, that it might have been reduced, when the injury was 
recent ; and that men of high standing in the profession, would 
not be likely to differ as to the nature of the injury ; that if no 
other means were used to reduce such a dislocation, than what 
could be applied Without Pullies, they should suppose that proper 
means had not been used, and that the patient had not had justice 
done him ; that a Surgeon of ordinary skill and prudence, could 
not fail in reducing ,t, or of knowing that it was notreduced ; and 
bat it it had been once reduced, the Patient could not dislocate 
the bone again while lying in bed ; that a skillful and prudent 
burgeon would compare the length of the limb with that of the 



13 



other, and examine the injury occasionally. Dr. Brown, of 
Waldoborough, an old experienced Surgeon and Physician, and 
Dr. Estabrook, examined the injury and testified to the same 
amount, but in stronger and more explicit terms. Dr. Richard- 
son, testified that from having seen me frequently walking in the 
street, he had perceived, I was lame, and that my lameness was a 
dislocation of the hip. The only contrary evidence of those who 
had examined the lameness, was that of Doctors Smith and Frye, 
who examined it 9 months after the injury, and testified that the 
thigh bone was not dislocated, that the injury was an affection of 
the muscles, and the former testified, also, that if the bone were 
dislocated into the ischiatic notch, the limb would, or might be 
longer than the other, as this notch in the living subject, was so 
filled with strong chords and ligaments, that the bone could in- 
dent but very little into it. Of those who had not examined me, 
Doctors Chandler & Weatherby, who testified that a dislocation 
into the ischiatic notch, would, (as Cooper says) make the limb 
shorter than the other, instead of longer ; and Dr. Sargent,who tes- 
tified merely as to the good character of Dr. Hawks as a Surgeon. 
There was other professional testimony taken on both sides, but 
the above is substantially what was used at the trial, excepting the 
deposition of Dr. Whipple, which the court admitted to be read 
contrary to law, and which no doubt had all the eiFect which was 
intended by it, although in the charge, the Jury were instructed 
to consider it as nothaving come before them< — although I do not 
conceive the necessity of the Court or Jury settling the question 
as to the particular kind, or technical name of the dislocation, it be- 
ing quite obvious, that the head ofthe/brmer was not in its proper 
socket. I will now examine the conflicting testimony on this point, 
by placing it in two separate columns. 

PVffs. Positive ' Time of Exam'n. Dish- 

Testimony. after the injury. ceded. 

Mann. 1 



)> 3 months 



Warren. 

Spooner. 

Welch. 

Town send. J 

Brown. 

Estabrook. 

W'pl'slst dep. 2 1-2 

Defendants' 

declaration at 

the time of operation. 



Def'spos. 
Testimony 

Smith. 
Frye. 



Time of 
Exami. 

9 mo. 



Not 
Disloc'd. 



5 
12 



u 



i( 



a 



Balance of positive 
testimony of a 
dislocation. 



1 

1 

2 



8 



10 



10 



14 



Circumstantial Testimony. Circumstantial Testimony 

The operat. of Ingalls > « Cooper's Book. 1 

and Hevves in Boston. $ * Chandler. I 

Patient's appearance- 999 Weatherbee. 1 



1001 Balance of 3 

Circ. evidence 998 



1001 



It will appear from this statement, that there are ten positive 
evidences in support of a dislocation ; and only two positive evi- 
dences, against it ; and of the circumstantial evidence, a balance 
of 998, that there is a dislocation. From this plain statement of 
facts, I should be willing to rest the cause with an intelligent and 
unbiased community, to determine if trie preponderance of the 
testimony in my favor, is not sufficient to satisfy them, that the 
hip is dislocated — but, we will take another view of the subject^ 
and see what weight ought to be given to Cooper's Book, and the 
testimony of the several witnesses ; and first, as to Cooper, it 
must appear obvious to any person of common powers of mind, 
who reads and reflects on the subject of anatomy, or the human 
system ; that, he is in an egregious errour, and it may be account- 
ed for in this way, to wit, that he, (as he says) measured from 
the centre of the acetabulum or socket, in the skeleton, to the top 
of the ischiatic notch, and found the latter to be from an half inch, 
to an inch above the former, so that, if the head of the femur were 
lodged iruthis notch, the limb would be that much shorter than 
the other ; this he set down in his own mind, without makiig any 
allowance, for the difference between the clean bone of the skele- 
ton, and the living subject, or considering, that the top of this 
notch, is too small to admit the head of the bone into it. Dr. 
Smith, their own witness, and the only one whose testimony is of 
importance, whom they bring up to support Cooper's position, 
says, that if the femur were lodged in this notch, the limb would 
or might be longer than the other ; that in the living subject, this 
notch is so filled with strong chords and ligaments, that the head 
of the bone could indent but very little into it. It is somewhat 
singular, that such a man as Sir Ashley Cooper, should make 
such a mistake in his professional writing, and it is certainly very 
extraordinary, that Judge Weston, should in his official capacity, 
set down the theoretical writings of an English Author, who 
writes on general principles, to which there are always exceptions, 
as better evidence than the positive testimony of such a number of 



15 

respectable witnesses, who had actually examined the particular 
case in question : but enough for the present. I shall take hold of 
that, by and by. — As to Dr. Smith it may be observed, that it is 
matter of some notoriety, that he is a very hasty man, and always 
inclined to oppose any idea advanced by the Boston faculty ; and 
when he was told what took place in Boston, he replied, " a pack 
of old grannies." — " I suppose Warren said so, and all the rest 
fell in with his opinion ;" and also, that while he remained at East- 
port, he tarried with Hawks and his counsel, who no doubt used 
all the powers of their feeble minds, to enlist his prejudices in 
their favour, and that Hawks gave a deposition for him, in anoth- 
er cause at the same time Smith gave one for him in this cause ; 
and that he never reduced but one dislocation of the hip, in his 
life ; that he told me, to make an issue on the outside of the hip, 
and keep it in operation for several months, and I should be a well 
man ; that I complied strictly with his directions, but to no ef- 
fect ; &lso, when on his way from Eastport to Brunswick, he 
operated on a child belonging to a Mr. Thomas, of Camden, 
and in about one hour after he took the child from its play, it was 
a corpse. The parents of the child had previously carried it to 
Dr. Brown, and wished him to perform the operation, but he de- 
clined, saying, "it cannot be done without endangering the 
child's life. If you let him alone, he may live comfortabty for sev- 
eral years." Will it be said, that in the case of this child, Dr. 
Smith acted in a skilful and prudent manner ? His proneness to 
oppose the Boston Doctors, his gratitude to his benevolent ben- 
efactor who had entertained him and given him a deposition, his 
partialities for the profession, his inexperience in dislocations of 
the hip, his ignorance of the result of his operation on the child 
in Camden, and the effect of an issue on my hip, should all be 
taken into consideration in weighing his testimony in regard to 
this cause ; and also, the fact of his saying after his very short 
examination of the lameness at Eastport ; " I will stake my life, 
that your hip is not out." — As to Wetherbee and Chandler, it 
was understood that they were each of them expecting a similar A 
prosecution, if I succeeded in this ; and if it were not so, neither ] 
of them ever gave the lameness the slightest examination, and if 
they had, would not probably have been capable of judging, es- 
pecially the latter, for he appears to me, to have scarcely sense 
enough to keep out of fire and water ; he came on to the stand, 
in such a frightened and trembling manner, that it seemed as if 
his feeble limbs would be unable to prevent his falling to the 
floor ; and there testified, that he was acquainted with all the 



16 

medical men in the United States ! that, Dr. Smith was much su- 
perior to Dr. Warren, and all others of the profession in the 
Union ! On being cross examined, as to the manner in which he 
had become acquainted with the medical men of the United 
States, where he received his education, and where he had 
travelled, answered, that he received his education in Boston, and 
had travelled south — when asked how far south? answered, as far 
as Dorcheater ! ! O, what a traveller ! ! ! Dr. Chandler would 
do well to publish his extraordinary travels, in order that the 
public may be benefitted by his wonderful discoveries. Dr. 
Frye, I understood had been a student of Dr. Smith ; he examin- 
ed, and testified at the same time, and of course would not like to 
give an opinion, different from that of his Master — so much may 
suffice, for the Defendants professional testimony. I will now no- 
tice the testimony in support of the action. 

As to the testimony of Doctors Mann, Warren, Welch, Spoon- 
er and Townsend, I need only say, that they are among the most 
respectable and experienced Surgeons in this country, and with 
the exception of Dr. Warren, have all been in practice, about fif- 
ty years — he, has probably had the most thorough medical edu- 
cation, of any man in New England, perhaps, in the United 
States ; and for the last twenty years, the most extensive practice ; 
has frequently reduced dislocations of the hip, and no doubt, has 
had more actual experience in reducing luxations, than Smith 
and every other Surgeon who has testified in this cause ; with the 
exception of Dr. Brown — his well known deliberation and mod- 
esty, are a sufficient guaranty, that he would not form his opin- 
ion hastily, or testify positively or inconsiderately, on a 
subject of this nature. And here it may be proper to observe 3 
that without any previous history of what the lameness was con- 
sidered at Lubeck, or the treatment I had received there, he gave 
a careful examination of my injury, on two several days, before 
giving me his opinion ; and also, that I could not get him to give 
this deposition, until I sent an officer, and tendered him the legal 
fee. Dr. Mann was a Surgeon in the Revolutionary war, the 
late war, and is now a Surgeon in the United States service. — 
Of the other Gentlemen, it is unnecessary to speak particularly, 
as they are well known to be skillful and experienced Surgeons, 
and such as would know whether a hip were dislocated, without 
being told by Dr. Warren, or the celebrated Dr. Smith himself ; 
who can tell that a man's hip is not dislocated, without any exam- 
ination, and while he is twenty rods off — Dr. Brown, is one of 
the most respectable and experienced Surgeons in Maine, and was 



17 

also in the service of his country during the Revolutionary war. 
and has frequently reduced dislocations of the hip. 

Dr. Estabrook is young, but a very respectable and promising 
young man, and ranks high in his profession, particularly in the 
Surgical department — he examined me alone, and without know- 
ing, that he should ever be called to testify on the subject. I 
wish the Reader to bear in mind, that the partialities of all these 
witnesses are in favor of the Defendants ; in consequence of which, 
the testimony is less severe upon them, than it would otherwise 
be. The manner in which I received the injury, is shewn by J. 
G. Reynold's deposition, marked A. The circumstances of the 
two operations at Lubec, and the subsequent treatment of Hawks 
and Faxon, by that of J. A. Lowell, marked C. and the opinion 
which Hawks had of Faxon, by that of J. Winslow, marked B. 
The testimony of Messrs. Sumner and Steams, I have omitted 
on account of its being merely corroborative of that part of J. A. 
Lowell's, which relates to what took place on the evening of the 
operation. I have also omitted on the part of the Defendants, 
the depositions of Messrs. Hobbs and Webster, the amount of 
which was, that two Ladies were confined at Eastport in the 
Autumn of 1821 ; and that Dr. Hawks was their family Physi- 
cian. Messrs. Green and Lincoln testified, on the part of the 
Defendants, that they were present at Smith's examination, and 
considered it sufficiently long. Mr. Phelps, testified that he 
heard me say I had been advised by my Attorney, to include 
Faxon in the suit, as it would prevent his being a witness. The 
two former, are Eastport folks, and the latter a man of the hot- 
crop persuasion ; and I understand, has lately formed an alliance 
with Dr. Faxon — comment is unnecessary. J. A. Lowell, has 
given two depositions in this cause, and testified twice on the 
staud ; and on being examined in Court, testified, that he had 
heard Hawks make observations about Faxon, similar to those 
mentioned in Winslow^s deposition, and also that at the operation 
he was present all the time, and saw no measurement or compar* 
ison made of the limbs, and that during my confinement with 
my lameness, he had heard me frequently complain that I was 
deserted by both Doctors. Josiah Coffin's deposition, named in 
the charge, I have thought it unnecessary to notice, as they are 
diametrically the reverse of each other. 

I have now gone through with the Evidence and history of 
this lamentable affair, which has caused me some of the most ex* 
cruciating pains, that human nature is capable of suffering ; one 
affair, which has caused me many a painful dav and foreboing 

3 



18 

night, swept from me, a comfortable living, which I had acquired 
by my own industry and perseverance, and doomed me to drag 
out a miserable existence, through the residue of my mortal life j 
for every step 1 take, I am reminded of my now irreparable mis- 
fortune. I am aware of the necessity of kissing the rod, and him 
who hath appointed it ; and were it purely an act of God, I could 
submit to it without a murmur ; but when 1 reflect on the fact, 
that I, a young man in the bloom and vigor of life, with a fami- 
ly, am suffering so severe a calamity, all through the igno- 
rance, fraud and unprecedented negligence of those men, in whose 
hands we trust our lives ; it admits of no consolations, except 
the consciousness, that they will be brought to the test of public 
opinion, and there found guilty, and from thence, to a higher 
tribunal, than that of their country. Yea, a tribunal where the 
partialities of the Court, nor the prejudices of the Jurors, will be 
able to defeat the just cause of the unfortunate. Upon a careful 
perusal of all this incontrovertible evidence, I am, and I trust 
the public will be, irresistably drawn to the following conclusion, 
viz. : That at the operation, Hawks and Faxon were ignorant, 
hasty and careless. Ignorant, in not reducing the dislocation, or 
knowing that it was not reduced. Hasty, in not taking more 
time for the examination. Careless, in not comparing the length 
of the injured limb, with the other, or ignorant, in not knowing it 
was necessary to be done ; and that if Faxon had been a skilful 
and prudent Surgeon, he would have given the lameness a very 
careful examination, when I complained to him of great and in- 
creasing pain for days and weeks after the operation, especially 
so, as he had found the limb drawn up, or crooked by the contrac- 
tion of the muscles. If he had done this, he would no doubt have 
discovered, that the dislocation was not reduced. He was there- 
fore guilty of gross negligence, in not examining the injury after 
the operation, and in neglecting me altogether after the first 30 
days. That Hawks, if he did not mean to attend me, was gross- 
ly to blame, in leaving me to perish in the hands of a man, that 
he did not consider fit to doctor a sheep or a hog, as appears from 
his declarations at different times, and especially from those to 
Winslow. In his defence, he contends that he had nothing 
more to do with me after the operation, that he left me altogether 
in Faxon's care. Would a skilful, prudent and humane Surgeon, 
have left a patient situated as I was, to a mnn like Faxon ? I 
answer, No. If he did not consider me his patient, it was cer- 
tainly his duty to have said to me, " Lowel, it is not prudent for 
you to trust yourself with Faxon, but I cannot attend you. and 



19 

you ought to look out for another Doctor," in which case, he 
would have been perfectly exonerated. That, I sent for him on 
the (6th day after the operation, and he paid no attention to the 
message, but came 10 days after, without being sent for. If he 
did not consider me his patient, why did he come and direct me 
to lie 3 days longer ? That, I then told him, I had been in ex- 
treme pain and feared the bone was not in its place. Why did 
he not examine me carefully, and see that the dislocation was not 
reduced f Why did he assure me all was right, when every mo- 
ment was to me pregnant with events, momentous as life ? And 
again, why did he stay away 10 days longer, and then come with- 
out being sent for ? And when, being interrogated by me as to 
the cause of the hollow on the out side of my hip, where there is 
a natural prominence produced by the trochanter major, when 
the limb is in its natural place, why in the name of common 
sense, did he not discover that the hip was still out of joint ? 
Again, that after an expiration of three weeks, which brought it 
to October 23d, he came again without being sent for, and by my 
putting pointed questions, and demanding categorical answers, 
as to the cause of the injured limb being so much longer thau the 
other, was forced to acknowledge thatthe limb looked as though 
it was not set, said he was in a hurry, but would come the next day 
and give my lameness a thorough examination ; that I waited ten 
days without seeing him, and then sent the witness (J. A. Lo- 
well) after him ; that Hawks then renewed the promise, saying, he 
would be over that day, unless the witches prevented, and that N 
he was afraid the hip was not set ; that notwithstanding these re- 
peated and positive engagements, and his acknowledgement of 
his fears as to my extremely critical situation, he neglected me 
altogether from the 23d of October, till the 19th day of Novem- 
ber i a period of 27 days ! ! The question naturally arises, why 
this unprecedented neglect ? The answer is obvious : he had se- 
lected me for a living spectacle of Faxon's ignorance and quacke- 
ry ; his execrable design is executed, and I am no doubt, the liv- 
ing spectacle of the ignorance and quackery, corruption and 
fraud of Micajah Hawks and John Faxon. My charge against 
the Defendants were ignorance and negligence ; either of which, 
proved, in any stage of the treatment would be sufficient to main- 
tain the action. And I would now ask, are not the 4 weeks 
neglect without any other circumstance, abundantly sufficient for 
that purpose . ? Is there an intelligent, honest and unprejudiced 
person, in the nation ? Is there one in the civilized world, that 
can read this testimony, aud conscientiously say, that the Be- 



20 

fentlants are not guilty, and I ought not to have recovered heavy 
damages ? I answer for n^self, that there cannot be, and would 
add, that they unquestionably, ought to maintain me and my 
family for life. It is a well known principle of law, that a person, 
let his profession or calling be what it may, who undertakes any 
business for another, shall conduct in that business with ordinary 
skill, and use all due diligence to effect the object of his employer. 
Many decisions of recent date, might be cited to this effect, but I 
will only name the following which took place (I think) 1820, or 
21. Mr. Wood, a respectable broker of Providence, took 
charge of a quantity of money in New-York, for the purpose of 
conveying to Providence or Boston ; but by some imprudent 
conduct on his part, while on board the steam boat, the money 
was exposed and stolen. The owners brought a suit against 
him to recover the money, and although Mr. Wood was to re- 
ceive no compensation for his service in the conveyance, and no 
one could entertain the least possible suspicion of his integrity : 
yet the Jury found a verdict for the Plaintiff, of 6 or 7000 dol- 
lars ; and that too, only for the want of a little attention, where 
nothing but property was concerned. The celebrated Adam 
Smith, an eminent writer upon the Wealth of Nations, and the 
author of a most admired book, entitled Smith's Moral Senti- 
ments, makes the following admirable observations, which are 
directly in point. " There is a degree of negligence, which would 
appear to deserve some chastisement, though, it should occasion 
no damage to any body. Thus it" a person should throw a large 
stone over a wall into a public street, without giving warning to 
those who might be passing by, and without regarding where it 
was likely to fail* he would undoubtedly deserve some chastise- 
ment. A very accurate police, would punish so absurd an ac- 
tion even though it had done no danger. The person who li3S 
been guilty of it, shews an insolent contempt for the happiness 
and safety of others. There is real injustice in his conduct ; he 
wantonly exposes his neighbour to what no man in his senses 
would choose to expose himself, aud evidently wants that sense r 
of what is due to his fellow creatures, which is the basis of jus.- 
tice and of society. When any unlucky consequences happen 
from such conduct, the person, who has been guilty ol it, is often 
punished as if he had really intended those consequences, and his 
conduct, which was only thoughtless, and insolent, and which 
deserved some chastisement, is considered as atrocious, and as 
deserving the severest punishment." Nothing we think, can be 
more just, than that one man should not suffer by the carelessness 



21 



of another; and that the damage occasioned by blamable negli- 
gence, should be made up by the person who was guilty of it. 
It is almost impossible for the human mind to conceive of ideas 
and words better adapted to a cause, than the foregoing are to 
this. I shall now present Judge Weston's Charge. 



- CHARGE. 

Gentlemen of the Jury, 

In this case, the Plaintiff demands damages for the negligence 
and unskilfulness of the Defendants, in the management of his 
lameness. The Plaintiff has declared in various manners, but 
the amount of all the charge is, that they treated him unskillfuly 
and negligently. Now, in making your verdict, you may find 
them both guilty, or both not guilty, or one guilty, and the other 
not gnilty, according as you have found the evidence, which you 
have heard. For the Plaintiff to support his case on the charge 
of unskilfulness, it is necessary for him to make it appear, that 
the Defendants did not manage with competent skill. The skiil 
required in this case is not the greatest possible skill, neither will 
the best possible skill be sufficient. You should compute- the 
skill according to the state of practice, in the country where the 
Defendants live. It is not to be expected of a Surgeon or Phy- 
sician in a country or obscure village, that he will possess the 
skill of a Surgeon in the city of London, or any other large city 
— this, it would be unreasonable to expect ; because in large ci- 
ties, where there are a great many Surgeons and Physicians, a 
person may have his choice, there is always competition. The 
patronage of Surgeons in such places, is great ; in small villages, 
the patronage being small, we must not expect a' very great de- 
gree of skill — No, gentlemen, all that is required in skill, is an 
ordinary degree of skill, compared with that of others in the 



22 



country where thev resMp Ya„ „,*ii ^ 

cian ; that he had ,ived i,X a ^ n ^T' famil >' "»* 
vi i- i un, y" lin g Mat appears in evidenrp JJJ „~+ 7-7-77 

ft JSKtxst *« f « ^ He saa 

^o^itvvasse a ' das Cd "°h T* be ° a " Se he saiH h « 
was set, with the P«v» n t;„ 5 ' hcy also ' thought it 

ki«d b ; fore i SS? hSTKi* t 1 r a c ,r of the 

friends consulted and ..„. ll • Ml ' - Lowe11 and "•« 

eluded to send for D, B^^W^^r F ^ C °»- 
then Gentlemen, it ap pearl thnt T) % ? j"? °° ob > c,!on •' 

required of Mm, JZt L fJrtT? ^ dme aU that was 

**/■«** Aether he did any MngafteZS' l Zh' Tt T 
came liable. Dr Hawks «L '* 2 ^ ' & whlch he be ~ 

W.rs.heexa,^ edttt- ? V,? '^ ° 1 ' ,WO or,hl ^ 

and out tfSS&SE&^S' 5ST dfd s the ™ ion > 

proceeded, and after operating, said it was set n- P I 

toier : then Lowell shew it to Hawks DrJjLi f , ° C " 

prised, and no d nib' was H c a ■'. i , ' , s a PP eare d sur- 

* , t/ u,tl i/> ^ e wiu attend to tnp pmV/™™ „r j i 

produced on both sides Dr wT evufen " °f learried men, 

and Dr. Eastabroofc Le of«t -*«*«'«**■ D '"- Brown 

hand, Dr. lffihSri* 1 , - ame OP ""'" : °» the oiher 

is owing to an alct o of 1 " T *£ ^ *"' thpla '™iess 
b o an anection oi the muscles. Sir Ashley Cooper, the 



greatest Surgeon in England, Surgeon to the King, Professor of 
Medicine and Surgery in St. Thomas and Guy's Hopitals, says 
that such a dislocation cannot happen, and that if there should be 
such an one, the limb would be from one half inch to an inch 
shorter than the other. Mr. Lowell's is three inches longer than 
the other. He says, the knee and toe would be turned in. Mr. 
Lowell's is not so. So that they (the Boston Doctors,) must be 
in an error. Dr. Chandler and Dr. Frye are also opposed to the 
Boston Doctors, and notwithstanding they may be at the head of 
their profession in Boston, you must consider them wrong in this 
case. Now then, although Drs. Mann, Warren, Spooner. and 
others say, that medical men of high standing could not differ in 
their opinion ; you will see that they actually do differ. And 
as to my own opinion, without pretending to any knowledge of sur- 
gery, I should say that the bone was lodged in the foramen ovale. 
Sir Ashley Cooper says, that in a dislocation of that kind, it 
would be 2 or 3 inches longer than the other— that is the case 
here. He says, the knee would project forward, and the knee 
and toe be about as usual — that is the case here. You will 
judge as to that. JVoiv if you believe, that they could not tell 
what the situation of the hip wai, you will not think they acted un- 
skilfully in that, because the most celebrated Surgeons, differ as to 
the real disease. And as to what was proper and necessary, if they 
could not help him any, you will judge, whether it was not best for 
them not to do any thing. It will no doubt be thought, that Ihave 
taken an unusual course in this cause ; but I feel it incumbent on 
me so to do. If they could not help him, I ask you, if it ivoidd not 
be best not to do any thing ? The manner in which they operat- 
ed is proved to you by Joshua A. Lowell, Mr. Sumner, and Mr. 
Stearns. If you believe them, and I know of no reason w ? hy you 
should not, and if they conducted the operation in the manner 
testified, it does not appear but that they acted skilfully. The 
Boston Doctors say there should be pullies used, and Dr. Brown 
and others say there should. On the other hand, Dr. Smith says 
there is no need of them ; and if Doctors of the highest medical 
skill disagree as to the necessity of their use, / do not see how 
you can condemn the Defendants for the part they took. Sir Ash- 
ley Cooper says, it is necessary to have pullies, and it appears to 
be the latter and better opinion, that pullies should be used ; but 
this is more established now, than formerly, audit does not appear 
that any thing of that kind could be had in the place where they 
were ; if they could have been had, it ivas incumbent on the Plain- 
tiff to have shewn it ; which he has not done. It is not possible/ 



24 

that the Defendants should have those conveniences for an oper^ 
ation in the town of Lubec, which might be had in the city of 
Boston ; so that you will judge, whether they were liable on that 
consideration — J must say, Gentlemen, I think they were not. — 
For any thing that appears the Defendants did the best they could ; 
and if they did, and Mr. Lowell has sustained an injury, he is an 
unfortunate man ; but Gentlemen, you will he very careful how 
you take money from the hands of one man, to put into the pockets 
of another. If you think the Defendants conducted skilfully as 
they could, at the operation ; and it does not appear that Mr~ 
Lowell ever complained of their conduct at the operation ; you will 
not find them guilty for that. Mr. Phelps tells you, that Mr. 
Lowell never complained of the conduct of either at the opera- 
tion ; he tells you, that Mr. Lowell told him he should sue them 
both jointly, because his Attorney advised him to sue both, to 
prevent Dr. Faxon from being a witness for Dr. Hawks.- If he 
included Dr. Faxon in the suit, for that cause, it was a very un- 
justifiable thing, preventing Dr. Hawks of the benefit of Dr. Fax- 
on's evidence. If he could have had that, he might have proved 
all their conversation, and every thing that happened. If you 
find them guilty, their reputation is ruined,^ they are greatly injur- 
ed ; but if you think them guilty of the offences charged against them, 
you are to remunerate Mr. Lowell in damages ; you are to make 
him whole. This case has had a very patient investigation, and 
been ably discussed by the counsel on both sides. The Deposi- 
tion of Dr. Whipple although read in your hearing, cannot be 
considered evidence,nothavingbeen taken according to law. You 
will therefore, not give any weight to that, and will consider it as 
not having come before you. The Deposition of Dr. Sargent is 
before you and contains much the same as that. The testimony 
of Josiah Coffin, you have had in his Deposition. The Plaintiff 
has introduced a former deposition of his to invalidate his testi- 
mony. The two Depositions are said by the Counsel for the 
Plaintiff to be contradictory, and those parts which are incon- 
sistent with each other, have been very ingeniously pointed out. 
Now, you will consider his two depositions, and if you think them 
so inconsistent that they cannot be true, you will weigh them ac- 
cordingly. You will have them both before you, and will give 
jhem what weight you think they deserve. The testimony of 
Jacob Winslow, and Joshua A. Lowell as to Hawks' declarations 
concerning Faxon, shew, that he had not a very great confidence 
in the skill of Dr. Faxon, if he had spoken it in a cool and deliber- 
ate manner ; but they had probably had some little, competition. 



25 

und Hawks spoke it hastily and without regard to his real opin- 
ion of his skill. You have the testimony of Dr. Weaiherbee and 
Dr. Chandler, who explained the bones of the pelvis, and the sif na- 
tion of the thigh bone in the different luxations ; all going to es- 
tablish that the Boston Doctors are wrong—and although they may 
be generally as correct as any in the profession, you must think that 
they have spoken with too much certainty, and that they put too 
much dependence on their own opinion. Si Ashley Cooper, who 
is probably the greatest surgeon in the world, says that such a dis- 
location cannot happen. In his first treatise, he says he thinks 
there cannot be any such ; in his last, published in 1822, he says, 
" Be it remembered, that there cannot be a downward and back- 
ward luxation. Professor Smith, of New-Haven, Dr. Frye, Dr. 
Chandler, and Dr. Weatherbee are opposed to the opinion of the 
Boston Doctors, so that, as to the skill of the defendants, I think, 
Gentlemen, you cannot find them guilty of want of skill. And as 
to the negligence — if they conducted skilfully at the time, you will 
judge whether they could have done any thing more than they did* 
What else could be done, if they did all they knew ? Upon the 
whole, the negligence will depend upon the unskilfulness, and you 
will judge of them bath at the same time. 

Counsel ror the Plaintiff Messrs. Orr Wilson and Greenleaf— = 
For the Defendants Messrs. Crosby, McGaw, and Daveit. 

Of this charge, I scarcely know how to speak in terms suffi- 
ciently expressive of my sentiments, and at the same time dispas- 
sionate and decorous— -it is in my opinion, replete with argument 
in favor of the Defendants, unfounded in facts, and forming a tis- 
sue of absurdities, which demand the inteference, and serious 
consideration of the Legislature ; and if my business were such as 
to admit of my personal attendance in Portland* I should certain- 
ly endeavour to obtain articles of impeachment against Judge 
Weston. Those parts of the charge, which are most palpably ab- 
surd, are printed in italics ; to which, and the testimony of J. A. 
Lowell, the public attention is especially ^nd respectfully invited. 
Is it not a little surprising, that Judge Weston should say in ex- 
cuse for these men, that I without even an Academical educa- 
tion, and without ever seeing a dislocated limb in my life, before, 
did not complain of their unskilful management at the operation, 
until I declared it in my writ ? It was sufficient for me to pro\e 
by respectable witnesses, the manner in which ihey did conduct ; 
ar.d afterwards, by professional men (the only proper persons to 
judge on this point) whether, that conduct were proper ; and by 
what authority, he ceuld say that Faxon did not pretend to Sur- 



26 

gery, I am at a loss to determine ; it certainly is not from th£ 
evidence, or any thing of public notoriety in this country. Why 
did he omit to name in his charge the testimony of Dr. Richard* 
son, one of my witnesses ? Why did he not say to the Jury, that 
Dr. Smith of New-Haven, and the Doctors of Massachusetts and 
Maine, who had examined me, as well as all writers on Anatomy, 
were opposed to Cooper's position ? Why did he not tell the 
Jury, of the great balance of testimony in my favor? W 7 hy did 
he say, it was incumbent on me to shew that putties (a mere takle 
and fall) might have been prepared in Lubec or Eastport ? Vil- 
lages containing about 100 active and enterprising merchants, 
whose stores are filled with almost every article of merchandize, 
that can be found in Maine, and with harbours on whose waters 
are frequently seen to float, from 80 to 100 sail of vessels at a 
time. As I had shewn that putties were necessary, and that they 
were not used, if the Defendants contended that they could not 
be obtained, in that section of the country, the burden of the proof 
was with them, and it was, therefore, illegal and absurd to require 
it of me. Why did he express so much sympathy for these men, 
who had treated me in such a barbarous manner, and tell the Jury 
how greatly they would be injured, if found guilty ; and never 
say one single word, as to my sufferings, or my incomparably 
greater injury than the loss of their reputation as Physicians ? 
How could he, when under the solemnity of an oath, and all the 
awful responsibility of his office, say that for any thing that ap- 
peared in all this evidence, the Defendants did act skilfully, that 
they did the best they could ? When the charges of ignorance 
and negligence are in their very natures distinct, and one may 
exist without the other ; and after having kept them separate 
through the whole of the investigation ; why did he confound them 
by instructing the Jury, that the charge of negligence would de- 
pend on the unskilful ness ? An idea more grossly absurd, I ven- 
ture to say, was never uttered by a man who had any kind of 
pretensions to legal knowledge, much less by one on the bench of 
the Supreme Judicial court, when charging the Jury with one of 
the most important causes, that ever was tried in the State. Well 
might he say, " It will no doubt be thought, that I have taken an 
unusual course in this cause ;" but how could he add, " that he 
felt it incumbent on him so to do"? Soon after the cause 
was given to the Jury, I fell in conversation with one of the 
most intelligent and respectable counsellors in this State ; to 
whom I observed, that I thought the charge would be repro- 
bated by 49 in 50 of the legal characters in the country; to 
which he replied, " I think so too," and added, " I cannot ac- 



«©unt"for Weston's charge, I never knew him to put to sea with- 
out compass, rudder, or tiller to steer by, as he has in this case 
of yours" — and a respectable lawyer, from the county of Han- 
cock, who was no way interested in the cause, was heard to say, 
"It is impossible to wink that negligence out of sight." I have 
also heard it said, that the argument of the Defendants' counsel 
would have been more correct as a charge, than the charge itself 
* — and that " a Jury who could not convict men with such evi- 
dence before them, deserved to be convicted themselves." And 
I challenge Judge Weston to point out a single case of this 
nature in the whole history of Jurisprudence, which has been 
more clearly proved than this. And I do not believe it in 
the power of human testimony, to make a cause clearer than this 
as it respects Hawks ;and though Faxon may not have been guilty 
of such aggravated neglect, yet as there was sufficient evidence of 
ignorance and stupidity, and of the joint undertaking, it would 
be contrary to legal principles, as well as justice, to sever them in 
a verdict. In the Judge's Eulogy on " Sir Ashley Cooper," and 
" Professor Smith," the flowery display of his own anatomical 
skill, fertile imagination, and undue attachment to the British, he 
seems to have forgotten the well known celebrity of the French 
Surgeons, and totally to disregard the positive testimony of all 
the Boston Surgeons ; whose talents and learning would do hon- 
or to any age or nation of the world ; and at the same time to 
give an undeserved importance to the testimony of two men of 
Bowker and Tucker memories ; whose talents and learning, if 
they have any, are as much inferior to the Boston Doctors, as the 
bodily powers of a new born infant are inferior to those of the 
greatest giant of the age. Upon a deliberate and thorough re- 
view of this charge, and its absurdities ; and a recurrence to the 
zealous and vehement manner in which it was delivered, I must 
say, T sincerely believe, a more extraordinary exhibition of violent 
prejudice and party zeal, or apparent violation of every principle 
of justice, mercy and humanity, can scarcely be found in the an- 
nals of the world. 

Had Judge W. erred through excessive sympathy for the unfor- 
tunate and suffering party to the suit, his conduct would have ad- 
mitted of some little palliation or excuse ; but when it is recol- 
lected, that he sided with numbers, wealth, and power, against an 
obscure individual whose complicated misfortunes have rarely 
been combined in the fate of any man : yea, misfortunes, that 
have been sufficient to overwhelm the buoyant spirit of any man 
of common powers of mind, and such as ought to call forth the 
hearty commisseration of his fellow creatures,; it is then, that, his 



28 

conduct appears in a doubly aggravated "light. The manner in 
which the Judge has treated this evidence, and passed over the 4 
weeks neglect ; and the doctrine which lie has attempted to es- 
tablish, all have a tendency to encourage falsehood, and a viola- 
tion of the most sacred and interesting engagements. He may 
be able to reconcile his conduct to his own con--ciei.ee ; but I think, 
he will be unable to do it to the satisfaction of the public, or the 
approbation of his God. 

The amount of this interesting subject, appears to be this : 
viz. That I, in the prime of life with a simple dislocation of the 
hip, fell into the hands of Micajah Hawks and John Faxon, by 
whose ignorance and negligence, I have lost the use of my hip for 
life ; that after suffering 5 excruciating operations, and expend- 
ing about 1000 dollars in Doctor's Bills, Nurses Bills, &c. and 
with a total loss of two years time and 1000 dollars more in an 
appeal to my Country for redress ; I have lost a just and plana 
cause, and that too, by the improper management of the Court, 
and the corrupt influence of a combination of unprincipled men, 
from various parts of the county of Washington. 

I have now told my plain and unvarnished tale of woe, & when 
my readers arrive at this point, I trust the\ will be prepared to 
say, that I have unfoided to them a scene of injustice and oppres- 
sion, which has few examples in the history of this Country, and 
such as ought not to be passed over in silence by the Government 
and People of this independant State. This cause is of no com- 
mon interest to society, or the parties engaged ; for every good 
citizen must feel a deep interest in arresting the progress of im- 
posture and quackery. It is one of peculiar bearing on the yita| 
interests of many, for it strikes at the very root of fraud and de- 
ception in every profession ; and although 1 am a ruined man, 
and life has few charms remaining for me ; although I have been 
extremely unfortunate in the unexpected result of this suit; there 
are no two acts of my life, on which I can reflect with more heart 
felt approbation, than the prosecution of Haw 7 ks and Faxon ; and 
the publication of this pamphlet ; and through subsequent life, I 
shall look back with the proud satisfaction, of having been a pub- 
lic benefactor, in exposing these Doctors and the Judge's charge, 
to the world. 

Although I am satisfied, that this work is founded on the immu- 
table basis of truth and justice ; and that it is couched in decor- 
ous and appropriate, though strong terms ; yet I have no doubt it 
will be assailed by some one of the numerous host of quacks, 
petty foirsrers, and Gamblers, with whose base influence, I have 
bad to contend during this protracted litigation; but unless they do 



< 29 

it in an ingenuous manner, and in their own proper names, I shall 
treat them with that silent contempt, which such communications 
deserve. 

I cannot close these observations without remarking, that, un- 
less Judge Weston's conscience (that monitor which the Great 
Disposer of events has given to every human being) has been 
entirely whipped to sleep, he must be a very unhappy man, when 
he reflects on the manner in which he has treated this cause ; and 
with all his literary acquirements, his health, wealth and honors, 
and all the disadvantages of my humble birth and education. — 
The poverty, pain,aud afflictions which raise their hideous heads 
in all my paths, I -vouid not exchange conditions with him, for 
the wealth of both the Indies ; for 1 have a " conscience void of 
offence towards God and man/' And although the loss of my 
property, and the treatment I have received, the loss of the use of 
my hip, and the pains and sufferings which I am doomed to endure 
through the round of time ; the recollection of past enjoyments, 
together with other misfortunes (not interesting to the public) do at 
times all ru»hupon my mind with a weight and impetuosity beyond 
the power of human efforts alone, to sustain. Yet, amidst all these 
calamities — amidst the clouds of darkness and doubt, injustice 
and oppression, I can look forward and seethe glimmerings of 
the sun, which seem to indicate the approach of better days. — 
There, lean behold the most profound and consummate wisdom, 
guiding the destinies of men ; and I feel a consciousness, that the 
Divine Blessing on the purity of intention, and the energy and 
perseverance which have characterized my hitherto rapid, but 
unsuccessful cause in life, will yet support, and conduct me 
through the labyrinth of life's thorny maze, to the peaceful 
shores of eternal blessedness, " where the wicked cease from 
troubling and where the weary are forever at rest." 

CHARLES LOWELL, 

Machias, Jannary 1, 1825. 



b&SfiSX 0F CONGRESS 



029 765 233 3 




